T.N. Singh, J.
1. An order of detention Under Section 3(2) of the National Security Act, shortly the Act, was passed against the petitioner on 18-7-83. He was, however, taken into custody on 8-11-83. Thereafter, a representation was made by him on 10-11-83 to the State Govt. as well as to the Central Govt. At both levels the representation was considered and rejected. The matter was referred by the State Govt. to the Advisory Board for its opinion and on receipt of the opinion of the Board on 21-11-83. The State Govt. confirmed the order of detention on 26-11-83. Thereafter, on 15-12-83 the petitioner came to this Court challenging his detention.
2. From a perusal of the grounds of detention it appears that the prejudicial activities attributed to the petitioner relate to a period ranging between 4-4-83 and 23-5-43. The detention order was passed with a veiw to prevent the petitioner from acting-in a manner prejudicial to the maintenance of public order. It is not necessary to refer in detail to the factual part of the grounds in view of the fact that the challenge grounded on the short point agitated by the learned Counsel for the petitioner, according to us, must prevail.
3. Relying on the decision of their Lordships of the Supreme Court reported in : 1975CriLJ12 (Sk. Nizamuddin v. State of West Bengal) and : AIR1975SC1517 (Sk. Serajul v. State of West Bengal) Mr. Goswami contends that there is no explanation in this case by the detaining authority to satisfy the Court about the genuineness of the necessity to pass the impugned order to detain the petitioner pursuant thereto. The burden, according to Mr. Goswami, rests solely and wholly on the detaining authority to satisfy the Court when the petitioner's liberty is jeopardised. Because, when the legality of the detention order is challenged the continued detention must be proved to be legal and warranted by law to the satisfaction of the Court If no authority of law is produced before the Court to satisfy it that there was a genuine necessity to detain the petitioner his continued detention would be void.
4. For this submission we find ample authority. Indeed, support for this proposition has not to be traced elsewhere as the authority referred to and relied on by Mr. Goswami is sufficiently eloquent. In Sk. Serajul (supra) the position of facts was almost similar. The incidents in relation whereto the detention order was passed took place on 21-11-71, 24-11-71 and 15-1-72 but the order of detention was not made until 24th Aug, 72. However, this order of detention was not given effect to and the petitioner was not arrested until 22-2-73. The Court held that there was delay in both stages and the same not having been satisfactorily explained would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority to detain the petitioner. The Court held that it would be reasonable to assume that if the detaining authority was really and genuinely satisfied after proper application of mind to the materials placed before him that it was necessary to obtain the petitioner with a view to preventing him from acting in a prejudicial manner, it would have acted with greater promptitude both in making the order of detention as also in securing the arrest of the petitioner and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his offensive activity. It is true that the Court also held that the facts and circumstances of each case have to be taken into consideration when genuineness of satisfaction is in issue. Nonetheless, their Lordships observed, the burden was on the detaining authority to satisfy the Court about the genuineness of its satisfaction. The detaining authority might have a reasonable explanation for the delay and the reasons given might be accepted by the Court if those were sufficient to dispel the inference that the satisfaction was not genuine. In the absence of such an explanation the inference shall stand. Because, the burden in such a case would not be considered as discharged by the detaining authority ; the fact that no complaint was made in the writ petition in regard to the delay in making the order of detention and arresting the petitioner would not avail the authority. Because, when a rule nisi is issued on a petition for Habeas Corpus it is the obligation of the State or the detaining authority in making its return to the rule in such a case to place all the relevant facts before the Court to discharge its burden. To the same effect is the decision in Nizamuddin (supra). There was a delay of 21/2 months in apprehending and detaining the petitioner pursuant to the order of detention and delay had not been explained. The Court similarly held in that case that genuineness of subjective satisfaction of the detaining authority was rendered doubtful. As no explanation was given by the detaining authority in the affidavit- in-reply filed in the case the Court held that it was not satisfied that the District Magistrate applied his mind and arrived at a real and genuine subjective satisfaction as to the necessity of detaining the petitioner for preventing him from acting in a prejudicial manner.
4A. The facts of the instant case are telltale : the detention order was passed on 18-7-83 and the petitioner was not apprehended until 8-11-83. There is no explanation whatsoever for this delay. It was the bounden duty of the detaining authority in the circumstances of the case to come up with a reasonable explanation to entitle the Court to sustain the validity of the continued detention of the petitioner. Whether he was in custody elesewhere in connection with some case or was absconding or otherwise for any other reason not available for apprehension had to be stated or explained. This could be done while filing the return or otherwise by producing relevant records. This not having been done in the instant case we are unable to uphold the legality of the continued detention of the petitioner which therefore must be held to be illegal and void The only reply by the State Counsel to the petitioner's contention is that the point was not taken in the writ petition but, as observed by their Lordships of the Supreme Court, such a reply has to be summarily rejected.
5. We further feel that it is necessary in this connection to explain and amplify the precise legal position which the detaining authority must always bear in mind while detaining any person under the Act. When an order of detention under the Act is made it is for a preventive purpose. There must, therefore, be a genuine 'necessity' to apprehend and then to detain the person not only on the date when the order is made but the 'necessity' must subsist when the order is executed to apprehend him. An order of detention under the Act cannot be used as a warrant of arrest to detain any person any time the authority chooses to do so without being satisfied as to the 'necessity' on the date of apprehending the person to detain him under the Act. The purpose of a warrant of arrest is to secure attendance of the accused for trial There is an interposition of judicial process both before and after the warrant is issued. A warrant is issued by the Magistrate not as a matter of course but only when commission of an offence is alleged and the accused further has a right to bail While, the purpose of the detention order is to prevent a prejudicial activity by the detenu and not to punish him for an offence or past activity. Though it aims to deprive him of his liberty, the effective legal safeguard available to the detenu against the preventive action is itself underwritten in Section 3 of the Act ; the power to pass the order is expressly subjected to the existence of 'necessity' to detain him. This condition must therefore exist not only on the date on which the order is passed but also on the date on which actual detention is made. Because, the 'necessity' in fact has to be for detention, and not merely for passing the order. The danger of misuse of a stale detention order is obvious. The power which the statute has given only, at the lowest level, to such responsible officer as the District Magistrate/Commissioner Police, becomes vested temporarily in any official of any rank who may have in his possession the detention order when the detenu is apprehended. Because it is necessary to ensure that a preventive detention does not partake, even when it is in the offing, a punitive character, it therefore becomes the duty of the authority concerned to satisfy the Court of the necessity for detention subsisting on the date of apprehension of the petitioner when he is taken into custody not immediately but after lapse of a long time since the passing of the order.
6. In the result the application is allowed and the rule is made absolute. The petitioner shall be set at liberty forthwith if he is not wanted in any other case.